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The Wrights Flights Made Them Famous.
Their Patent Battles Made Them Crazy.
By
Dan Ackman
On December
17, 1903, in Kitty Hawk, North Carolina, Orville Wright took off in
a flying machine and landed 120 feet away. It was the first time in
history a machine carrying a man had flown into the air by its own
power, moved under control, and landed at a point as high as that
from which it started. The event caused no shockwaves, because, for
one thing, the brothers, though they issued a brief statement, did
little to publicize their achievement. Second, the few people who
did learn about the flight probably didn't believe it. At the time,
the idea of heavier-than-air flight was thought to be the province
of crackpots.
Minds would
change, but it would be years before the world acknowledged the
Wrights as the fathers of flight, and years more before the brothers
could stake a legal claim to their invention. Now, of course, the
brothers are seen as the quintessential inventors. One of the
nation's leading patent law firms, New York's Fish & Neave, which
litigated the Wrights' patents, still uses a silhouette of the
brothers' flying machine in its firm literature, heralding its
century-old association. But the Wright brothers were hardly
enamored of the American legal system. They railed against the
delays it allowed and the expense it required. Many believe that the
stress and fatigue associated with defending their patents killed
Wilbur in 1912 when he was just 45 years old.
Wilbur
Wright first thought of flying in 1899. By 1902 he and Orville had
built and tested a functioning glider, and that was the machine they
filed a patent for in 1904. The lawyer who filed the application was
not Frederick Fish, the famed patent lawyer whose original firm
eventually broke into Fish & Neave and Fish & Richardson. The
brothers instead turned to Henry Toulmin of Springfield, Ohio, not
far from their Dayton home. Toulmin remained their chief counsel
throughout their careers as inventors. While Toulmin and Fish never
lost a case on behalf of the pair, the victories came too late for
the brothers to profit from their invention as they might have.
From the
time they invented their machine, the Wrights knew that staking
their claim wouldn't be easy. Wilbur in particular was reluctant to
demonstrate what their machine could do without a contract. But it
was hard to sell (or license) it without showing it. The brothers
also needed a patent.
The
brothers had applied earlier for a patent, in June 1903. But the
U.S. Patent and Trademark Office rejected it on the grounds that the
description of their machine was "vague and indefinite." The patent
had been anticipated by at least six other patents and could not be
allowed because the device described was "incapable of performing
its intended function." The Wrights hired Toulmin a month after the
first flight at Kitty Hawk. While the patent was pending, Wilbur
expressed concerns that their colleagues would publish details of
their discovery or their competitors would find out how they did it.
In 1905 the
Wrights offered to license their invention to the U.S. government.
The Army turned them down flat on the grounds that it was not in the
business of making "allotments for the experimental device for
mechanical flight." By April 1906 a patent was issued. But by then
others, especially in France, had flown, the brothers still had no
contracts, and their rivals openly doubted the Wrights' claims. The
turning point came in 1908: Wilbur made public flights in France
that captured the world's imagination. Orville made an even more
spectacular showing near Washington, D.C., in 1909.
Their fame
only provoked further competition, and the brothers became more and
more focused on their legal rights. In June 1908 Orville accused
rival Glenn Hammond Curtiss, a successful young motorcycle
manufacturer from upstate New York, of copying their designs. In
1909, Wilbur's thoughts turned to litigation. Besides Curtiss, two
French aviators, Louis Bleriot and Henri Farman, were also entering
the industry. "I intend to bring suit against the importer of
Bleriot and Farman machines, and I think the patent matter should be
pushed in Europe also," Wilbur wrote to Orville.
By 1910 in
the United States, and earlier in Europe, others were making money
staging air shows. Wilbur refused to play what he called the monte
bank game, insisting that they should earn their returns by
exploiting their intellectual property. "We honestly think that the
work of 1900-06 has been and will be of value to the world, and that
the world owes us something as inventors, regardless of whether we
personally make some Roman holidays for accident-loving crowds,"
Wilbur wrote to Octave Chanute, a fellow flight pioneer.
Early in
that year the Wright Company earned two legal victories in patent
actions against the Herring-Curtiss Co. In his decision, U.S.
district court judge John Hazel of the Western District of New York
described the brothers' "conception of the idea of securing and
maintaining equilibrium in the air," and concluded "its importance
cannot be overestimated." Following Judge Hazel, Judge Learned Hand,
sitting in the southern district, reviewed the prior inventions
related to flight and decided the "infringement is clear," and
granted a preliminary injunction. But the U.S. Court of Appeals for
the Second Circuit, in a two-paragraph decision, reversed both
decisions, citing "a sharp conflict of evidence."
Thrown back
into court, by 1911 Wilbur was displaying increasing frustration
with his imitators. In June he wrote to Orville: "Only two things
lead me to put up with the responsibilities and annoyances for a
moment. First, the obligation to people who put money in our
business, and second, the reluctance a man naturally feels to allow
a lot of scoundrels and thieves to steal his patents."
Delays made
Wilbur crazy. In a letter dated May 4, 1912, Wilbur lectured Fish,
who had represented Alexander Graham Bell, like a junior associate:
"Unnecessary delays by stipulation of counsel have already destroyed
three-fourths of the value of our patent. The opportunities of the
last two years will never return again. At the present moment almost
innumerable competitors are entering the field, and for the first
time are producing machines that will really fly."
This was
the last letter that Wilbur Wright ever wrote. By May 8 he was in
bed with typhoid fever. On the morning of May 30, he was dead.
Though Orville won more court victories in 1913 and 1914, the
business was losing money. In 1915 Orville sold the company to a
group of New York businessmen who reorganized it as the
Dayton-Wright Company.
When the
United States entered World War I, the government instigated a
solution to the patent battles. By that time, Curtiss had its own
patents. All aircraft manufacturers joined a cross-licensing
agreement that allowed member firms to use each other's technology
for a blanket fee. Dayton-Wright and Curtiss each received $2
million, according to The Bishop's Boys, a biography by Tom Crouch.
In 1929, in a historical irony, the two companies merged and formed
Curtiss-Wright.
In a letter
to R.G. Dubois, a lawyer in East Orange, New Jersey, Orville summed
up his experience dealing with the U.S legal system. "The most
serious trouble that the American inventor encounters, however, is
in the very high cost of litigation in America. Our patent
litigation in America cost us over ten times what it cost in either
France or Germany. A big part of this is due to the many delays that
are permitted."
One hundred
years after the first flight at Kitty Hawk, aviation has progressed
to an almost unfathomable degree. From the look of things,
litigation has not.
Dan Ackman,
senior columnist for Forbes.com, is completing a screenplay about
the Wright brothers.
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